Willis v. Lafayette-Phoenix Garage Co., Inc.

• Citation: 260 S.W. 364,202 Ky. 554
• Parties: WILLIS v. LAFAYETTE-PHNIX GARAGE CO., INC.
• Decision Date: 28 March 1924
• Court: Kentucky Court of Appeals

260 S.W. 364

202 Ky. 554

WILLIS v. LAFAYETTE-PHNIX GARAGE CO., INC.

Court of Appeals of Kentucky.

March 28, 1924

Appeal from Circuit Court, Fayette County.

Action by R.I. Willis against the LaFayette-Ph nix Garage Company Incorporated. Judgment for defendant, and plaintiff appeals. Affirmed.

James Park, of Lexington, for appellant.

Smith &amp Reynolds, and W. E. Darragh, all of Lexington, for appellee.

SAMPSON C.J.

This appeal questions the constitutionality of the acts of the General Assembly of 1918, now sections 2739h1 and 2739h2 providing a lien on motor vehicles for service on or work done, or for accessories or supplies furnished by a garage mechanic, repairman, individuals or corporations, on the ground that the precedure prescribed for the sale of automobiles to satisfy such claims for repairs and accessories does not amount to due process of law and that such a sale as provided for by the act is a taking of private property without due process of law, and without giving the owner a day in court.

On December 17, 1920, appellant, Willis, left his automobile at the garage of appellee company in Lexington to be painted, repaired, and stored. The car was forthwith painted, repaired, and stored by the garage company. It remained in the garage from December 17, 1920, until some time after April 15, 1922, more than 16 months, at which time the garage company, proceeding under section No. 2739h2, Kentucky Statutes, sold the car at public auction to satisfy the charges for storage and repairs, having first advertised the sale for six days in a daily newspaper of general circulation, published in the city of Lexington, as required by the said section of the statutes. The advertisement was published in the Lexington Leader for six days before the sale.

The sale was by public auction to the highest and best bidder, the car bringing $245, the charge of the garage was $61.12, for repairs $148, and $9.53 interest. In the meantime and on April 5, 1921, one Dunlap sued out a general order of attachment against the property of appellant, Willis, and this was levied upon his car in the garage on the same day, and this attachment lien, if any there was, had not been set aside or discharged at the time of the sale of the machine as aforesaid.

The act of 1918 being section 2739h1 and 2739h2 Kentucky Statutes under which the garage sold the car reads as follows:

Section 2739h1: "All persons, individuals, or corporations in conducting the business of selling, repairing, furnishing accessories or supplies for motor vehicles shall have a lien on such motor vehicle for the reasonable or agreed charges for repairs, work done, accessories or supplies furnished for or on machines, and for storing or keeping said machine, and such persons, individuals or corporations may detain all motor vehicles in their possession on which work has been done by them until the reasonable or agreed charges therefor have been paid.

"The lien provided for in this act shall not be lost by the removal of such motor vehicle from the garage, shop or premises of the person, individual or corporation performing labor, repairing, furnishing accessories or supplies therefor; provided, however, such person, individual or corporation shall assert such lien within six months by filing in the office of the county clerk of said county a statement showing the amount of materials furnished or labor performed on said car and the cost of same. Said statement to be filed in the same manner as the lien of mechanics and materialmen, after the removal of such vehicle, unless the owner thereof shall consent to an additional extension of time as provided for in this act, in which event the lien shall extend for such a length of time as the parties may agree upon, reduced to writing and signed by the parties thereto."

Section 2739h2: " Sale of Vehicle for Charges, after Thirty Days; Newspaper Advertisement.--Any motor vehicle remaining in possession of a person, individual or corporation on which repairs have been made, labor performed, accessories or supplies furnished by such person, individual or corporation for more than thirty days may be sold to pay said charges, but the person, individual or corporation to whom the charges are payable shall first advertise said vehicle for sale six days before the sale is made, in some paper of general circulation in the town, city or county where the materials were furnished or labor performed on such motor vehicle."

Appellant says that section 2738h2 is unconstitutional being violative of both the second and eleventh sections of the Constitution of Kentucky and the Fourteenth Amendment of the Constitution of the United States. These sections read:

"Sec. 2. Absolute and arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority.

Sec. 11. In all criminal prosecutions the accused has the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor. He cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land; and in prosecutions by indictment or information, he shall have a speedy public trial by an impartial jury of the vicinage; but the general assembly may provide by a general law for a change of venue in such prosecutions for both the defendant and the commonwealth, the change to be made to the most convenient county in which a fair trial can be obtained."

The Fourteenth Amendment, § 1, federal Constitution, in part, reads:

"Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

It is also insisted by appellant that the second section of the act above quoted deprives the owner of his property without due process of law, as notice to party whose property is to be sold is necessary in order to constitute due process of law, and in support of this proposition we are citing the following cases and texts: Hagar v. Reclamation District, 111 U.S. 701, 4 S.Ct. 663, 28 L.Ed. 569; Murray v. Hoboken Land & Development Co., 18 How. 272, 15 L.Ed. 372; Louisville v. Cochran, 82 Ky. 22; Varden v. Mount, 78 Ky. 86, 39 Am.Rep. 208; City of Paducah v. Ragsdale, 122 Ky. 425, 92 S.W. 13, 28 Ky. Law Rep. 1057; Garnett v. Jennings, 44 S.W. 382, 19 Ky. Law Rep. 1712; Griffith v. Gross, 108 Ky. 160, 55 S.W. 1077; 31 Cyc. 788-862, 876, and note. Appellant also attacks the act as special legislation, and relies upon the following authorities: Kentucky Constitution, § 59, subsec. 22; Jensen v. Wilton E. Wilcox Lumber Co., 295 Ill. 294, 129 N.E. 133; Thurber Art Galleries v. Rienzi Garage, 297 Ill. 272, 130 N.E. 747.

The act divides itself into three parts: The first grammatical paragraph gives to all persons, individuals, and corporations conducting the business of selling, repairing, and furnishing accessories and supplies for motor vehicles a lien on the car for the reasonable or agreed charges for repairs and accessories had or supplied for or on the machine, as well as for storing and keeping said machine, and allows the keeper of the garage and repair shop to detain all motor vehicles in his possession until the reasonable or agreed charges due the garage keeper have been paid. The second grammatical section of the act provides that the lien granted by the first paragraph shall not be lost by the removal of such motor vehicle from the garage or premises, provided the garage keeper shall assert such lien within six months by filing in the office of the clerk of the county court a statement showing the amount of materials furnished, or labor performed on the car and the cost of same, in the same manner as mechanics' and materimen's liens are now required to be filed. With this second grammatical paragraph we will have no cause to deal in this opinion except in a general way.

The third paragraph of the act, being section 2739h2, confers upon the garage keeper, whether an individual or a corporation, making repairs, but not for storage, the right to sell the machine so repaired on which accessories have been supplied or work done, to pay the reasonable or agreed charge of the garage, after the car has been left in the keeping of the garage for more than 30 days without payment of the charges, and after the car has been advertised for sale six days in some paper of general circulation in the town or city where the materials were furnished or labor performed on the vehicles. This last paragraph is the one of which appellant chiefly complains.

We think that the first section of the act which merely gives a lien to the garage for repairs accessories and storage is but an expression of the common law. Before the enactment of the statutes on the subject, mechanics and repairmen could retain a machine, whether an automobile or not, for the reasonable charges incurred in making repairs thereon at the instance of the owner or his representative, and this part of the act does not enlarge the common law, but merely reasserts it. In considering this phase of a similar statute of New York for the protection of the keepers of garage the court said:

"We thus find that the statute, so far as repairs are concerned, is merely declaratory of these common-law rights. The principles of the common law therefore govern, and, irrespective of the statute, the defendant repair company's lien must be held superior to that of the plaintiff owner." Terminal & Town Taxi Corp. v. O'Rourke, 117 Misc. 761, 193 N.Y.S.

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